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Keller v. Odin Management8/19/1998
n on the cross-claim. H & R Block appeals this judgment.
Prior to trial on plaintiff's demand, the district court granted H & R Block's motion for summary judgment, dismissing plaintiff's tort claims against her employer. During trial, at the close of plaintiff's case, the trial court granted Odin's motion for involuntary dismissal of plaintiff's claims. The court found that Odin acted reasonably under the circumstances in closing the mall and was not liable for plaintiff's subsequent injury related to H & R Block's continued operation. Plaintiff appeals the judgment.
DISCUSSION
The plaintiff contends the trial court erred in granting Odin's motion for involuntary dismissal. Plaintiff argues that she proved by a preponderance of evidence that Odin breached its duty to maintain the mall sidewalks in a safe condition and that she was injured as a result.
LSA-C.C.P. art. 1672 (B) provides that in an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party may move for a dismissal on the grounds that upon the facts and law, the plaintiff has failed to show a right to relief. In a non-jury case, the appropriate standard for the trial court's determination of a motion to dismiss is whether the plaintiff has presented sufficient evidence to establish her claim by a preponderance of the evidence. Vig v. City of Shreveport, 28,530 (La. App. 2d Cir. 8/21/96), 679 So.2d 524.
Proof by a preponderance of the evidence means that, when taken as a whole, the evidence shows that the fact or cause sought to be proved is more probable than not. Vig v. City of Shreveport, supra; Fuller v. Wal-Mart Stores, Inc., 519 So.2d 366 (La. App. 2d Cir. 1988). A dismissal based on Article 1672 (B) should not be reversed in the absence of manifest error or unless clearly wrong. Vig v. City of Shreveport, supra.
In order to determine whether liability exists under the facts of a particular case, we apply the duty-risk analysis, which requires the plaintiff to establish that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty to protect against the risk involved, and the duty was breached. Mathieu v. Imperial Toy Corp., 94-0952 (La. 11/30/94), 646 So.2d 318; Lee v. Great Southwest Fire Ins. Co., 493 So.2d 789 (La. App. 2d Cir. 1986).
In the present case, William McFadden acknowledged that the mall management was responsible for maintaining the sidewalks in a condition reasonably clear of ice for tenants and their employees. Defendants contend that this duty did not continue after the mall closed at 5:00 p.m. because Odin could not reasonably be expected to keep the sidewalks clear of ice at such a time and it did not know of the hazard to plaintiff. However, the record does not support the defendants' contention.
Although McFadden distributed a notice to tenants concerning the early mall closing, Odin knew or should have known that not every customer or employee would be out of the building by 5 p.m., and so would need to use the sidewalks after that time. The mall security guard testified that other tenants, in addition to H & R Block, continued to serve those customers who had entered their stores before the 5 p.m. closing.
Odin's knowledge that the outside walkways continued to be used after closing is illustrated by the fact that the back service doors were left unlocked for a period of time after the mall closed to accommodate tenants and their employees who needed to leave and re-enter the mall. This practice continued on the day of the accident, because the rear service door was unlocked at 5:30 p.m. when t
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